Delhi District Court
Sh. Sheetal Parshad Jain vs Sh. Harsh Sabharwal on 21 January, 2011
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IN THE COURT OF SH. PRITAM SINGH, ARC (CENTRAL) TIS HAZARI
COURTS, DELHI.
E124/09
Sh. Sheetal Parshad Jain
S/o Late R.S.Ulfat Rai Jain,
R/o 7/33, Ansari Road,
Darya Ganj, New Delhi110002. ...Petitioner
Versus
1. Sh. Harsh Sabharwal
S/o Late Virender Kumar
2. Smt. Poonam Sabharwal,
W/o Late Virender Kumar
3. Smt. Anju Batra
D/o Late Virender Kumar
4. Smt. Reena Taneja
D/o Late Virender Kumar
All of 7/33, Ansari Road,
Darya Ganj, New Delhi110002.
And also at :
R/o G25, Preet Vihar,
I.P.Extension, Vikas Marg, Delhi110092.
Petition U/s 14 (1) (e) r/w Section 25B of Delhi Rent Control Act.
1. Date of institution of the case : 21.01.2009
2. Date of Judgment Reserved : 13.01.2011
3. Date of Judgment pronounced : 21.01.2011
JUDGMENT
2 The brief facts as stated in the petition are that originally the entire property bearing no. 7/33, Ansari Road, Darya Ganj, New Delhi110002 was owned by late R.S.Ulfat Rai Jain. Late R.S.Ulfat Rai Jain was having four sons namely Late Daulat Rai Jain, Sheetal Prasad Jain, Late Arah Dass Jain and Late Narender Kumar Jain. The entire property of Late R.S.Ulfat Rai Jain was partitioned and divided amongst his four sons and all the four sons got the property mutated in their names and as such became owners of their share of the said property. After becoming the owner of his share the petitioner started paying house tax to the Municipal Corporation of Delhi of his share of the property. The premises in dispute came in the share of the petitioner.
2. It is further stated that in the year 1969 the petitioner created a tenancy in favour of Sh. Virender Kumar son of Late Madan Lal, who was the sole proprietor of M/s Narang Scientific and Electronic Equipments vide a rent note dated 08.10.1969. The respondents are the legal heirs of late Sh. Virender Kumar. After the death of Sh. Virender Kumar respondents No. 2 to 4 have surrendered their tenancy rights and only respondent No. 1 has attorned to the petitioner and he alone started paying rent to the petitioner. At the time when the premises in dispute was rented out all the 3 three sons of the petitioner namely Siriyansh Kumar Jain, Sushil Kumar Jain and Sunil Kumar Jain were students and the petitioner was not in need of the premises in dispute. After completing their education all the three sons started their own business.
3. It is further stated that the petitioner requires the tenanted premises for the separate office of his son Sushil Kumar Jain who is sharing office with his younger brother Sh. Sunil Kumar Jain and the premises in which both are doing business is a tenanted premises. Both are the tenants of Yogesh Kumar Jain. Sh. Sushil Kumar Jain carrying on his business under the name and style of M/s Arihant Udyog and Sh. Sunil Kuamr Jain under the name and style of M/s Paper Conductors. Both the sons of the petitioner are having separate business. Due to paucity of accordance they are forced to share one office. With the expansion of business both are facing various problems such as attending their customers, employees, experts and advisors.
4. It is further stated that as such the premises in dispute is required by the petitioner for bonafide need of his son Sushil Kumar Jain who is having his godown just adjacent to the premises in dispute which is marked E in the site plan. It is further stated that the petitioner is having one more shop 4 on the ground floor in which his grand daughterinlaw namely Bani is doing her business in the name and style of Vikalp Events which is marked A in the site plan. Bani is the grand daughterinlaw of petitioner's i.e of eldest son Siriyansh Kumar Jain and the shops B,C and D marked in the site plan are in occupation of the other tenants.
5. It is further stated that the respondents No. 1 and 2 are having house of 400 Sq. Yds. at G25, Preet Vihar, Vikas Marg, Delhi110092 and having another property bearing No. 42, Darya Ganj, New Delhi which is lying locked. Apart from this the respondents have various other properties in Delhi.
6. It is further stated that all members of the family of the petitioner are having their offices within the compound of the Main Kothi 7/33, Ansari Road, Darya Ganj, New Delhi which solves various problems such as safety security and availability of the family members at the time of need. After getting the disputed premises vacated Sh. Sushil Kumar Jain will have his own independent office within the compound of the main Kothi. In this way the petitioner requires the premises bonafide for the use of his son Sh. Sushil Kumar Jain.
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7. Leave to defend applications filed by the respondents alongwith their affidavits. It is stated in the affidavits of respondents that they are the cotenants in the premises in dispute. Sh. Virendra Kumar was the sole proprietor of his firm M/s Narang Scientific & Electronic Equipment and after his death respondents became the cotenants in the demised premises. The business of M/s Narang Scientific & Electronic Equipment, is in the name of respondent no. 2 Smt. Poonam Sabarwal, who is the sole proprietor and respondent no. 1 is assisting his mother in the said business.
8. It is further stated that the respondents no. 2 to 4, had never surrendered their tenancy rights nor respondent no. 1 has ever exclusively attorned to the petitioner as alleged nor respondent no. 1 started paying the rent to the petitioner. It is further stated that the rent is being paid by M/s Narang Sceintific & Electronic Equipment.
9. It is further stated that the nature of the premises commercial, and even the premises were let out to the respondent for commercial purpose. It is further stated that the petitioner with malafide intentions has concealed the accommodation of about 6 rooms in the 1st floor above the shops A to E and the demised premises, which have been declared commercial in nature and are lying vacant.
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10. It is further stated that the two sons of the petitioner, Sh. Sushil Kumar Jain and Sunil Kumar Jain are occupying the constructed portion of about 100 sq. yards, in the back portion of the building (the alleged tenanted portion, allegedly belonging to Sh. Y.K.Jain). The alleged tenanted portion is in exclusive occupation and control of the petitioner and his sons and it is denied that the sons of the petitioner are the tenants of Sh. Y.K.Jain or any other person in the said portion. The petitioner and his wife reside with their three sons, who are having their separate independent houses at B.M.Rohtagi Apartments, 1 RK Road (Builders ABP Developers Pvt. Ltd.) (behind S Trauma Center) Civil Lines, Delhi. The petitioner sometimes visits the building in Daryaganj, with his two sons and after spending some time returns to Civil Lines.
11. It is further stated that the aforesaid two brothers are in the joint business and they are having their factories and offices at 10/132 Tunda Nagar, Jonaripur, Shani Bazar Wali Gali, Delhi110094 and at Bawana, Industrial Area, Delhi where many employees work. Respondent no. 1has been fully involved in the business for last 10 years as his father died in the year 1999 and he had to look after the business. Even otherwise from childhood he has been off and on coming to the demised premises, and he 7 has never seen any employee, customer or person visiting them at the building in Daryaganj, either on 1st floor or the alleged tenanted portion or any other portion.
12. It is further stated the corner shop marked A, the shop marked B and the rear room marked E shown as commercial room in the site plan, have been lying vacant and are in possession of the petitioner. The shop A is lying vacant for last many years and there was never a tenant. The petitioner with malafide intentions has wrongly and falsely alleged that the shop A has been used for last many years by his grand daughterinlaw and that the room E has been used for last many years for commercial purpose/godown purpose by Sh. Sushil Kumar Jain. It is stated that the shop B is lying locked for last more than 10 years and is also vacant and is in the possession of the petitioner. Only the shops marked C and D and the demised premises are occupied by tenants and commercial activity is carried out.
13. It is further stated that the petitioner has concealed the vital and valid information regarding the factories/offices of Arihant Udyog and M/s Paper Conductors. Both the factories/industries are operating in spacious places where there is sufficient accommodation for factory/workshops and offices. Even otherwise no operation or office activity have been carried out by sons 8 of the petitioner, at Daryaganj or from any portion of the building, or the 1st floor or ground floor of 7/33 Ansari Road, Daryaganj, Delhi. The sons of the petitioner have been using the address of the Daryaganj building for the purpose of correspondence of their business carried out at Tunda Nagar Delhi 110094 and Civil Lines, Delhi and other places where their factories are situated. It is further stated that the petitioner and his sons are negotiating with the other tenants in shops C and D to evict them, as they want to sell the entire property.
14. Reply to the applications of leave to defend alongwith counter affidavit filed on behalf of petitioner. It is denied that the petitioner has not field the correct site plan and has not given the details of the shops in his ownership. It is also denied that there are six rooms in the first floor above the shops A to E and which are in the ownership of petitioner and are lying vacant. In fact the families of the three sons of the petitioner are living on the first floor. The entire first floor is being used for the residential purpose only for the family of the petitioner. However, the ground floor is commercial. It is stated that the premises in which both the sons of petitioner are carrying on their separate businesses is a tenanted premises, owned by Sh. Yogesh Jain and not by Sh. Y.K.Jain and is measuring only 50 sq. yards.
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15. It is further stated that in the tenanted office Sh. Sunil Kumar Jain and Sh. Sushil Kumar Jain have their full flagged offices and facing difficulty of running their business. The sons of the petitioner family namely Sh. Sunil Kumar and Sh. Sushil Kumar are having flats at BM Rohtagi Apartments, 1, R.K.Road. But they are still living at Darya Ganj with their parents and no commercial activity can be carried out in those residential flats as such acquiring those flats does not create any impediment to the petitioner to file the present petition for getting possession of commercial premises in dispute for his son Sh. Sushil Kumar Jain.
16. It is further stated that the first floor of the building is meant for residential purpose only where the petitioner and his other family members are residing. The petitioner requires the premises in dispute bonafide for his son Sh. Sushil Kumar. Sh. Sushil Kumar Jain is having a business in the name and style of Arihant Udyog and Sh. Sunil Kumar Jain is having the business in the name and style of M/s Paper Conductors. It is further stated that both the sons of the petitioner are having separate business 10/132, Tunda Nagar, Johripur, Shani Bazar Wali Gali belongs to Sh. Sushil Kumar Jain and Bawana Industrial Area, Delhi belongs to Sunil Kumar Jain. Both the establishments are only manufacturing units or factories there exist no office in the aforesaid two premises, as in the factory no office can be set up 10 from where the business cannot be transacted. It is vehemently denied that there is no employee in the office. It is further denied that no commercial activities of any type has been carried out.
17. It is further stated that the respondent has stated about the properties of the petitioner but he has not disclosed the details of his properties. He is having property No. 42, Darya Ganj, itself which is in commercial nature. He doe not want to shift there. He is having another huge property at G26, Preet Vihar, Delhi. He is having two factories and other offices also, the postal details of which are not in the knowledge of the petitioner and intentionally and deliberately he has not disclosed the details of the properties. As already stated in forging paras that in Tunda Nagar and in Bawana there are factories of two sons of the petitioner. It is absolutely denied that the petitioner requires the premises for selling purpose.
18. The respondents have filed rejoinder to the reply/counter affidavit of petitioner in which the respondents have reiterated and reaffirmed the averments made in the leave to defend applications and those made in the reply had been controverted.
19. Arguments heard. Record perused and considered.
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20. Ld. Counsel for the petitioner relied upon the following rulings :
(i) Satyawati Sharma (dead) By LRs Vs. Union of India and another, (2008) 5 Supreme Court Cases 287.
(ii) Narender Kumar Vs. Vishnu Kumar Nayyar, 49 (1993) Delhi Law Times 684.
(iii) M/s John Impex (Pvt.) Ltd. Vs. Dr. Surinder Singh & Ors., 2007 (1) RCR 509.
(iv) Mohd. Usman Vs. Siraj Ahmed, 154 (2008) Delhi Law Times 342.
(v) J.Chattergee Vs. Mohinder Kaur, 2000, Rajdhani Law Reporter 561 (SC).
(vi) Nem Chand Daga Vs. Sh. Inder Mohan Singh Rana, 2002 I AD (Delhi) 657.
(vii) Hari Shanker Vs. Madan Mohan Gupta, 111 (2004) Delhi Law Times
534.
(viii) Shamshad Ahmad & others Vs. Tilak Raj Bajaj (deceased) through Lrs & others, 152 (2008) Delhi Law Times 301 (SC).
(ix) Rajender Kumar Sharma & others Vs. Leela Wati & others, 155 (2008) Delhi Law Times 383.
(x) M.Devaraj Vs. Vijayalakshmi, 1991 (1), AIRCJ 331. 12
21. Ld. Counsel for the respondents relied upon the following rulings :
(i) Inderjeet Kaur Vs. Nirpal Singh, (2001) 1 Supreme Court Cases 706.
(ii) Rahabhar Productions Pvt. Ltd. Vs. Rajendra K. Tandon, (1998) 4 Supreme Court Cases 49.
(iii) Mattulal Vs. Radhe Lal, (1974) 2 Supreme Court Cases 365.
22. The present petition has been filed u/s 14 (1 ) (e) r/w section 25B of DRC Act and in order to succeed in such a petition, petitioner has to prove
(i). Ownership of the suit premises ; (ii). Purpose of letting; (iii) Alternative accommodation; and (iv) bonafide requirement;. Let the same be discussed in detail.
Ownership of the suit premises & Purpose of letting.
23. The respondent has neither disputed the ownership of the petitioner over the premises in question nor disputed the relationship of landlord and tenant between the parties. So far the purpose of letting is concerned, after the judgment of Hon'ble Apex Court in Satyawati Sharma Vs. Union Of India III (2008) SLT 553, an eviction petition is maintainable in respect of the commercial purposes.
Alternate accommodation & Bonafide requirement 13
24. The respondents have contended that the shop A,B and E, as shown in the site plan filed by the petitioner, are lying vacant and not being used as alleged by the petitioner. The respondents further contended that the shop A is not being used by grand daughterinlaw of the petitioner nor the shop/room E is being used by Sh. Sushil Kumar son of the petitioner and the shop B is lying locked for last more than 10 year and is in possession of the petitioner. On the other hand the petitioner has stated that the shop A is in occupation of his grand daughter in law Smt. Bani and she is running her business in the name and style of Vikalp Events. The shop E, as shown in site plan is in occupation of his son Sushil Kumar and he is using it as a godown. The shop B is in occupation of other tenant. The petitioner has filed copies of rent receipt regarding shop B for the period from 01.01.2009 to 31.12.2010 and another rent receipt date 17.04.2003 rent upto 31.12.2003. The petitioner has also filed photographs showing that the shop A is being used by his grand great daughterinlaw and running her business in the name of Vikalp Events. The petitioner has also filed the copy of sales tax form and copy of retail invoice/cash memo of M/s Arihant Udyog showing the address as 7/33, Ansari Road, Darya Ganj, New Delhi i.e suit property. From these documents it is clear that the shop no. A,B and E are already in use and occupation and the same are not lying vacant as alleged by the respondents.
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25. The respondents further contended that six rooms are lying vacant on the first floor in the suit premises and the same can be used for commercial purpose by the petitioner. The petitioner has stated that he alongwith his family members is residing in the first floor of the suit premises and the same is being used for residential purpose only. The tenanted shop in question is on ground floor, front side and the petitioner needs the shop for his son namely Sushil Kumar who is presently running his business/office from the tenanted shop of his brother, Sunil Kumar. It is well settled law that the petitioner/landlord is free to decide which property suits to him and a tenant cannot dictate terms to the landlord to choose the premises for his use. It was held by Hon'ble Supreme Court in M/s John Impacts Pvt. Ltd. Vs. Surender Singh, 2007 (1), RCR 509 that the landlord is best judge of his requirement and a tenant cannot dictate terms on which the landlord should live. Bonafide of landlord would also depend upon on his financial status and his standard of living.
26. The respondent further contended that the premises from where the son of the petitioner are running their businesses is not tenanted premises as alleged by the petitioner and both the son of the petitioner are doing the same business. The respondent further contended that the sons of the 15 petitioner are running their businesses from Bawana, Delhi and Tunda Nagar. Industrial Area, Delhi. Respondents further contended that the sons of the petitioner have sufficient accommodation and they are running their business and office from Bawana, Delhi and Tunda Nagar, Delhi. The petitioner filed a rent receipt of the tenanted premises from where his son Sunil Kumar is running his business and it is clear that the rent is being paid of the said premises to Sh. Yogesh Jain. I do not find any force in these contention of the respondents, both Bawana and Tunda Nagar are Industrial areas and the same are not fit to run the offices.
27. The respondents further contended that they are cotenants and at present respondent no. 2 Smt. Poonam Sabarwal is sole proprietor of M/s Narang Scientific and Electronic Equipments.The respondent no. 2 to 4 had never surrendered their tenancy rights nor the respondent no. 1 ever exclusive attorned to the petitioner as his landlord and the owner. The rent is being paid by M/s Narang Scientific and Electronic Equipments. These contention were denied by the petitioner in his reply. I do not find any merit in the contentions of the respondents that they are cotenants in the suit premises. As per rent note executed on 08.10.1969, Sh. Virender Kumar S/o L.Madan Lal is partner of M/s Narang Scientific and Electronic Equipments and he took the shop in question on rent. This rent note was not 16 disputed by the respondents. The plea of the respondents that M/s Narang Scientific and Electronic Equipments, which is a proprietorship concern, had taken the suit premises on rent has no force, because a proprietorship concern is not a legal entity. A proprietorship concern is like a shop and its proprietor is its owner. A proprietorship concern cannot enter into a legal agreement as it is not a legal entity. It is well settled that after death of tenant all the legal heirs of the tenant become joint tenant and not cotenant, It was held by Delhi High Court in Krishan Kumar Alag Vs. Jambu Prasad Jain Deceased through LR Anand Kumar Jain, 161 (2009) Delhi Law Times 511 that after death of tenant, his legal heirs inherit property as joint tenants and if one of them alone occupies tenanted premises, it is considered that others have surrendered their rights in his favour. Lrs are not considered tenants n common so as to have separate and several rights in tenanted premises. Sufficient, if LRS in occupation of tenanted premises are made as party and not necessary to bring on record each and every LR of deceased.
28. Considering all this aspects I am of the considered view that the petitioner is not having any suitable/alternative accommodation for his son Sh. Sushil Kumar and he bonafidely needs the tenanted shops in question to get start an office for his said son. It is a social duty of a father to provide accommodation to his children for their business/profession and such a need 17 is always bonafide. The respondents have failed to raise any tribal issue. Hence the petitioner is entitled for an eviction order u/s 14 (1) (e) r/w section 25B of DRC Act.
29. Accordingly, the applications seeking leave to defend moved by the respondents are dismissed and an eviction order is passed u/s 14 (1) (e) r/w section 25B of DRC Act in favour of the petitioner and against the respondents in respect of the suit premises i.e two shops/rooms on the ground floor in building no. 7/33, Ansari Road, Darya Ganj, Delhi110002 more specifically shown in red color in site plan Ex. C1 (exhibited today while passing the order). However, it is made clear that the petitioners shall not be entitled to get the eviction order executed before expiry of 6 months running from today. No order as to costs.
File be consigned to Record Room.
(Announced in the open court
on 21.01.2011) (Pritam Singh)
ARC/Central/Delhi